INTOLERANCE OF TERROR, OR
THE TERROR OF INTOLERANCE?
RELIGIOUS TOLERANCE AND THE
RESPONSE TO TERRORISM
AGNES CHONG*
Introduction
n assessing Australia’s legislative approach to terrorism, it is often
stressed that an appropriate balance must be struck between national
security interests and fundamental human and civil rights.*1 Implicit in this
is the idea that some sacrifice of our human or civil rights is necessary for
the ultimate triumph over the threat to national security.
While the loss of civil liberties by the Australian citizenry as a natural
consequence of the introduction of counter-terrorism legislation is hotly
debated, there does not appear to be as much attention on the impact of
counter-terrorism legislation on religious communities, and in particular,
Muslim communities.
There is no reason to doubt that religion played a part in the recent
terrorist attacks in New York, Bali, Madrid and London. These events have
pushed to the fore the connection between religion and terror, and terms
such as “Islamic terrorism” (a juxtaposition that reinforces the view that
Islam is a cause of terrorism) now proliferate. While many proponents of
Islam would argue passionately that Islam rejects terrorism, one cannot fail
to acknowledge that terrorist attacks around the world can be, and indeed
have been, fuelled by religious motivations, no matter how misguided.
However, since much of the discourse has posed modern terrorism
as a religious problem, this has led, inevitably, to solutions that come at
the expense of religious freedom. This formulation has led to the further
implementation of laws that have had an adverse impact on religious
tolerance of Muslims through the creation of certain offences and the
inevitable use of racial or religious profiling.
This paper argues that there has been a conceptual flaw in the
formulation of Australia’s legal and political response to terrorism. Part
II of this paper looks at the relationship between religion, terrorism and
I
*BA (Communications) LLB (Hons). Agnes Chong is a co-founder and co-convenor of the
Australian Muslim Civil Rights Advocacy Network. The author gratefully acknowledges the
guidance and advice of Waleed Kadous and Vicki Sentas on earlier drafts.
1 See, e.g., Ben Golder and George Williams, “Balancing National Security and Human
Rights: Assessing the Legal Response of Common Law Nations to the Threat of Terrorism”
(2006) 8 (1) Journal of Comparative Policy Analysis 43.
153
AGNES CHONG
counter-terrorism legislation post-September 11; and Part III examines how
this backdrop leads to the implementation of specific counter-terrorism
laws and their effect on the delicate balance between religious freedom
and national security.
II. Religion, Terrorism and Counter-terrorism
Legislation
The terrorist attacks of 11 September led to an unprecedented shift in the
legislative landscape. Terrorism is now defined at law and there has been
an extraordinary focus on the nexus between religion and terrorism. In this
environment, the emphasis of religious motivation—and particularly that
inspired by Islam—in defining terrorism is of dramatic prominence.
Despite the government’s insistence that the war on terrorism is not a
war on Islam,2 the counter-terrorism laws and the discourse around them
are clearly targeted at “extremism” of a religious kind. For example, the
government white paper on Transnational Terrorism: the Threat to Australia,
released in March 2004, posits that Muslim extremism is the modern
terrorist threat faced by Australia to the exclusion of all other sources of
threats:
The threat we face today is driven by an extremist interpretation of Islam.
This form of extremism is absolutist. It leaves no room for compromise
and it seeks no place at the negotiating table. It uses violence to signal
its committed path to a final end. It is not bound by social norms, laws
or values. These terrorists justify and feed their ideology through skilful
exploitation of dynamics within mainstream societies. They use adverse
political, social and economic conditions as a rallying cry to recruit and
motivate their members. They exploit distrust of the West and feelings
of humiliation and anger. They invoke events that resonate with most
Muslims, such as the Israeli-Palestinian conflict and the war in Iraq, as
justifications for their ideological cause.3
This viewpoint of Islamic extremism as a threat of terrorism informs
the legal and socio-political response to terrorism.
A. RELIGION AND THE LEGAL RESPONSE TO TERRORISM
Defining terrorism and hence the parameters of its threat is not an easy
task because of the fine line between terrorism and liberation struggles on
the one hand, and between terrorism and criminal activity on the other,
and to distinguish them calls upon one’s subjective standpoint.4 While
2
See, e.g., the Prime Minister John Howard’s comment, “There is nothing in our
laws, nor will there be anything in our laws, that targets an individual group be it Islamic
or otherwise,” in “PM not ‘targeting’ Muslims”, The Age, 9 November 2005; see also
‘Ruddock doubts terror cell claims’, The Age, 28 September 2005.
3
Department of Foreign Affairs and Trade, Transnational Terrorism: The Threat to
Australia, 29 March 2004, Chapter 2.
4
Nathan Hancock, Terrorism and the Law in Australia: Legislation, Commentary and
Constraints, Research Paper No 12 (2002) para 2.3.1; Ben Golder and George Williams,
“What is ‘Terrorism’? Problems of Legal Definition” (2004) 27 University of New South
154
RELIGIOUS TOLERANCE AND THE RESPONSE TO TERRORISM
acts of terrorism necessarily include some action that would be criminal,
the government argued that the existing criminal law was not sufficient to
deal with terrorism.5 Justice Hope, the Commissioner reviewing national
protective arrangements following the Sydney Hilton hotel bombing in
1978, stated in his report that “virtually all terrorist acts involve what
might be called ordinary crimes—murder, kidnapping, assault, malicious
damage, and so on—albeit for political motives.”6 It is the motivation that
is one of the central considerations in defining “terrorism”.
Prior to the terrorist attacks on 11 September, religious motivation was
not specifically mentioned in legal definitions of terrorism, even in most
European jurisdictions. The UN Declaration on Measures to Eliminate
International Terrorism in 1997 simply refers to “Criminal acts intended
or calculated to provoke a state of terror ... for political purposes,” and
adds that motivations such as religion should never justify terrorism.7
In Australia, a Parliamentary Research Paper prompted by the need
for analysis of Australia’s preparedness for terrorism in 2001, concluded
that should the Commonwealth enact a separate terrorist offence, such an
offence might target acts or threats of violence or national concern that
are “motivated by political, social or ideological objectives”.8 Religion was
not expressly included in the recommendation.
However, section 100.1 of the Criminal Code now defines a “terrorist
act” as including an additional reference to religious motivation.9 One of
the reasons cited by the Attorney-General as to why the existing legislative
framework was inadequate was that the provisions for the proscription of
unlawful associations under Part ILA of the Criminal Code were primarily
directed at politically-motivated organisations “rather than those inspired
by religious or ideological motivations”.10
Wales Law Journal 270.
5
See, for example, the federal Attorney-General Philip Ruddock’s view that “the
criminal law system which waits until an offence has occurred and then deals with the
consequences is not seen to be appropriate in the new environment,” ABC Radio, “Law
Council Hopes High Court will Stop New Anti-Terrorism Laws”, AM, 7 December 2005.
6
Protective Security Review, Report (Unclassified Version), AGPS, Canberra, 1979, 42.
7
UN Declaration on Measures to Eliminate International Terrorism, Res. 49/60 of
9 December 1994; Silvio Ferrari, ‘International Law and Religion Symposium: Article:
Individual Religious Freedom and National Security in Europe After September 11 ’ (2004)
Brigham Young University Law Review 357, 364-365.
8
Nathan Hancock, Terrorism and the Law in Australia: Legislation, Commentary and
Constraints. Research Paper No. 12, 2001-2002, Parliament of Australia, para 2.3.5.
9
Section 100.1 of the Criminal Code defines “terrorist act” as an action or threat of
action where:
the action falls within subsection (2) and does not fall within subsection (3); and the
action is done or the threat is made with the intention of advancing a political, religious
or ideological cause; and the action is done or the threat is made with the intention of:
coercing, or influencing by intimidation, the government of the Commonwealth or a
State, Territory or foreign country, or of part of a State, Territory or foreign country; or
intimidating the public or a section of the public.
10 Senate Legal and Constitutional Committee, Parliament of Australia, Consideration
of Legislation Referred to the Committee, Security Legislation Amendment (Terrorism)
Bill 2002 [No.2]; Suppression of the Financing of Terrorism Bill 2002; Criminal Code
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AGNES CHONG
Religious motivations, then, appear to be a central concept in defining
terrorism.
The inclusion of religion in the legal definition of “terrorist act” has
serious consequences. It has been argued that the definition of “terrorist
act” is overly broad and hence it could cover a range of legitimate activities,
including activities associated with legitimate freedom movements that
oppose tyranny (previously including organisations such as the African
National Congress in South Africa and Fretilin in East Timor).11 There
are many independence movements around the world that are fighting
oppressive regimes, many in the Muslim world. The definition at law does
not allow for such movements to be supported in any way, even if they
have legitimacy at international and legal levels.
The definition also increases the prospect that religious motivations in
general are suspect or should be at least seen as suspect. It has been argued
that a person protesting on religious grounds against the publication of
books by Salman Rushdie, and who intentionally knocks down a fence
posing a serious risk to public safety, is capable of being found guilty of
committing a terrorist act, and would be subject to heavy penalty such as
life imprisonment.12
B. RELIGION AND THE SOCIO-POLITICAL RESPONSE TO
TERRORISM
The uncompromising stance on terrorism by enacting tough anti-terrorism
laws may indicate an over-reliance on legal solutions to what is essentially
a socio-political problem. However, unless the causes of terrorism are
properly dealt with in the global context, any extremist or violent tendencies
cannot be easily dispelled by the threat of the force of law alone. In his
report on the Inquiry into Legislation Against Terrorism in 1995, Lord Lloyd
of Berwick opined that “it is an illusion to believe that the fanaticism and
determination of well established terrorist organisations can be defeated
by laws alone, even of the most severe and punitive kind,”13 concluding
that “there is no legislative fix or panacea against terrorism”.14 A prominent
Muslim leader has reasoned,
There are two fronts in the war against terrorism: addressing the often
genuine political and social problems that terrorism seeks to solve, and
addressing the ideological foundation by which such terrorism is justified.
Amendment (Suppression of Terrorist Bombings) Bill 2002; Border Security Legislation
Amendment Bill 2002; Telecommunications Interception Legislation Amendment Bill
2002, 25.
11 See, e.g., Agnes Chong, Patrick Emerton, Waleed Kadous, Annie Pettitt, Stephen
Sempill, Vicki Sentas, Jane Stratton and Joo-Cheong Tham, Laws for Insecurity? Report
on the Lederal Government’s Proposed Counter-Terrorism Measures (2005) 10; Sarah
Jones, “Australian Counter-Terrorism Legislation and the International Human Rights
Pramework”, (2004) 27 University of New South Wales Law Journal 428, 432.
12 Silvio Perrari, above n 7, 366.
13 Lord Lloyd of Berwick, Inquiry into Legislation Against Terrorism, Cm 3420, October
1996, cited by Hancock, above n 8, para 2.2.1.
14 Ibid.
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RELIGIOUS TOLERANCE AND THE RESPONSE TO TERRORISM
While the former is largely the responsibility of governments, the struggle
against the ideology of terrorism can be fought only by Muslim scholars
speaking the one language that extremists universally respect: the language
of theology. 15
Yet, in Australia at least, there is an unexplored tension between legislating
against religious terrorism and the idea that religious teaching, and in
particular, fundamentalist teaching, may actually assist in preventing
terrorism. While the government appears to have engaged the community
through the Muslim Community Reference Group, ostensibly a consultative
committee to advise the government, upon closer inspection it becomes clear
that it is only achieved on a superficial level. There are two aspects to this.
Firstly, the government went to some lengths to exclude those members
of the community whom it regarded as “extremist”, arguing that they did
not want to give a voice to radical elements.16 However, this argument is
fundamentally flawed.
If religious terrorism is based on an incorrect interpretation of the
religion, then it follows the leaders with real spiritual and theological
authority amongst those most susceptible to terrorist recruitment are best
placed to shatter those ideas.17
However, in spite of significant efforts on the part of the Muslim
community in defending the religion of Islam against allegations that
it is a violent, or terrorist religion, a perception persists that religious
fundamentalism leads to, or even equates to, terrorism. The two concepts
are often used interchangeably in modern day counter-terrorism rhetoric.
However, it is incorrect to associate fundamentalism with terrorism.18
For example, the most austere and conservative scholars in Saudi Arabia
have been some of the most vehement opponents of terrorism. In 2004,
the Grand Mufti of Saudi Arabic and Chairman of the Council of Senior
Religious Scholars Shaikh Abdulaziz Aal-Shaikh delivered a sermon to
almost two million pilgrims at the annual pilgrimage of Haj j that denounced
terrorism as well as those who perpetrate it in the name of Islam:
You must know Islam’s firm position against all these terrible crimes. The
world must know that Islam is a religion of peace and mercy and goodness; it
is a religion of justice and guidance . . . Islam has forbidden violence in all its
forms. It forbids hijacking airplanes, ships and other means of transport, and
it forbids all acts that undermine the security of the innocent.19
15 Amir Butler, “Theology key to halting rise of extremism”, Sydney Morning Herald,
24 August 2005.
16 ABC Radio, “‘Extreme fools’ left out of Muslim advisory group: Cobb”, PM, 1 6
September 2005 <http://www.abc.net.au/pm/content/2005/sl462305.htm> at 20 March
2006.
17 Amir Butler, “PM’s Muslims don’t represent all Muslims”, The Age, 23 August 2005.
18 For an in depth analysis of the subgroups in Islam, their ideological positions and their
relationship with terrorism, see Quintan Wiktorowicz, “A Genealogy of Radical Islam”
(2005) 28 Studies in Conflict and Terrorism 75.
19 Royal Embassy of Saudi Arabia, Washington DC, “Saudi Arabia’s top cleric urges
Muslims to reject terrorism” (Media Release, 2 February 2004); “Top Saudi religious
authority condemns terrorist”, CNN.com, 1 February 2004 <http://edition.cnn.com/2004/
157
AGNES CHONG
In some senses, religious fundamentalism is a key aspect to the
psychological attack on terrorism. Conservative leaders will be able
to debate and debunk any erroneously-held beliefs. This has proved
to be a successive model in Saudi Arabia and Yemen.20
Secondly, in only giving voice to the “moderate” leaders and excluding
certain sections of the community, the government created a vehicle
whereby it was able to lend credence to a particular brand of Islam,
reinforcing the division between “fundamentalist Islam” (read “extremist”,
“terrorist”) and “moderate Islam” (read “acceptable”). In establishing a
committee ostensibly to target extremism in the community but which
shuns particular parts of the community, the government has chosen the
parts of the religion that are deemed to be the correct, or acceptable, or
approved form of practice.
This non-inclusive approach has two effects. The first is that it leads
to the community feeling targeted, and thinking that the government will
not accept their own solutions to a problem that is widely perceived to
be theirs. Secondly, it speaks of a governmental intolerance of ideas and
religious practice. Implicit in this intolerance is the view that the Muslim
community and Islam itself, is antithetical to a solution to “terrorism”.
As a result, the religion of Islam is constructed as inherently violent and
incompatible with democracy. This sets up a discourse that coercive and
draconian law is the only option.
III. Specific Features of Counter-Terrorism Laws and
their Effect on Religious Practice
Specific provisions of counter-terrorism legislation that are contained
within the political and legal framework discussed in Part II suffer from
having the flow-on effect of limiting the freedom of religion. Article 18 of
the United Nations Universal Declaration of Human Rights defines the
freedom of religion as including the right to freedom of thought, conscience
and religion, as well as the right to manifest the person’s religion or belief
in teaching, practice, worship and observance.
This part of the paper will examine how these protections have been
undermined by specific features of the counter-terrorism laws, namely, the
proscription powers contained in Part 5.3 Division 102 of the Criminal
Code; the association offence under section 102.8; the sedition offences
under section 80.2; and lastly various other features likely to lead to the
use of racial or religious profiling.
A. THE PROSCRIPTION REGIME
Under the Criminal Code, a “terrorist organisation” is defined in two ways.
Firstly, section 102.1(1) (a) defines a “terrorist organisation” as one that
WORLD/meast/Ol/31/saudi.hajj.ap/> at 13 June 2006.
20 Amir Butler, “Freedom of Speech: Liberty or Liability?” (Speech delivered at Laws for
Insecurity? Public Forum on Terrorism Law, Melbourne, 17 November 2005).
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RELIGIOUS TOLERANCE AND THE RESPONSE TO TERRORISM
is “directly or indirectly engaged in, preparing, planning, assisting in or
fostering the doing of a terrorist act (whether or not the terrorist act occurs)”.
Secondly, an organisation can also be proscribed by the Attorney-General
as a terrorist organisation if he or she is satisfied on reasonable grounds
that it is directly or indirectly engaged in, preparing, planning, assisting in
or fostering the doing of a terrorist act,21 or that it advocates the doing of
a terrorist act.22 In effect, this grants power to the executive to criminalise
organisations considered a threat to Australia’s national security. It creates
a conclusive presumption that the organisation is a terrorist organisation,
and facilities the burden of proof in criminal hearings.23
The Security Legislation Review Committee review of anti-terrorism
legislation introduced in 2001, was critical of the process of proscription
and believed that “a fairer and more transparent process should be devised
for proscribing an organisation as a terrorist organisation”.24 In practice, this
proscription process has been criticised as highly subjective and political.25
The broad executive discretion given to the Attorney-General may be
subject to political considerations such as foreign policy determinations
that are far less likely to arise in a rigorous judicial setting.26 For example,
the organisation Palestinian Islamic Jihad was proscribed despite the fact
that it had no known presence in Australia, no known links to Australia, or
any financing from Australia.27 It would appear that the listing was made
“largely on the basis that other major countries had already listed it”28.
The added political underpinnings substantially encourage a politicised
reading of the “political, religious or ideological motivations” in the
definition of “terrorist act”. To date, all but one of the nineteen proscribed
organisations in Australia are self-identified as Muslim groups,29 while the
21 Criminal Code s 102.1 (2)(a).
22 Criminal Code s 102.1 (2)(b).
23 Security Legislation Review Committee, Review of the Operation, Effectiveness and
Implications of the Amendments made by the Security Legislation Amendment (Terrorism)
Act 2002, the Suppression of the Financing of Terrorism Act 2002, the Criminal Code
Amendment (Suppression of Terrorist Bombings) Act 2002, the Border Security Legislation
Amendment Act 2002, the Telecommunications Interception Legislation Amendment Act
2002, and the Criminal Code Amendment (Terrorism) Act 2003 (2006), 61.
24 Ibid, 4.
25 Nigel Brew, The Politics of Proscription, Parliamentary Research Note No. 63 (21 June
2004).
26 For a discussion of the proscription regime and consideration of other possible models,
see Security Legislation Review Committee, above n 23, 85-100.
27 Parliament Joint Committee on ASIO, ASIS and DSD (as it then was), Review of the
Listing of the Palestinian Islamic Jihad (PIJ) (2004), 20-21.
28 Nigel Brew, above n 25.
29 The Criminal Code Regulations 2002 (Cth) cl 4A-4W specify that for the purpose of
paragraph (b) of the definition of “terrorist organisation” in sub-s 102.1(1) of the Criminal
Code, the following organisations are proscribed: A Qa’ida, Jemaah Islamiyah, Abu Sayyaf
Group, Jamiat ul-Ansar (JuA), Armed Islamic Group, Salafist Group for Call and Combat/
GSPC, Tanzim Qa’idat al-Jihad fi Bilad al-Rafidayn, Ansar al-Islam, Asbat al-Ansar, Islamic
Movement of Uzbekistan, Jaish-e-Mohammad, Lashkar-e Jhangvi (LeJ), Egyptian Islamic
Jihad, Islamic Army of Aden (LAA), Hizballah’s External Security Organisation (ESO),
Palestinian Islamic Jihad (PIJ), EIAMAS’ Izz al-Din al-Qassam Brigades, Lashkar-e-Tayyiba
(LeT) and Kurdistan Workers Party (PICK).
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AGNES CHONG
proportion of proscribed Muslim organisations in comparable overseas
jurisdictions is comparatively lower.30
This is all the more pertinent in view of the legislative amendments
in the Anti-Terrorism Act (No. 2) 2005 which introduced the concept of
proscription on the grounds that the organisation “advocates the doing of a
terrorist act (whether or not a terrorist act has occurred or will occur)”.31 It
is widely perceived, at least by Muslim communities, that this new criteria
for proscription was intended to ban a specific Muslim organisation, since it
immediately followed a finding by the Australian Security and Intelligence
Organisation that the group in Australia could not be proscribed under the
then existing provisions in the Criminal Code.32 This is problematic because,
as discussed above in Part II, the definition does not exclude support of
legitimate liberation movements.
In the current political climate, the proscription regime can be used to
criminalise local organisations or affiliations between individual Muslims.
Once an organisation is proscribed, it will be an offence for a person
to direct the activities of the organisation,33 to provide support to the
organisation,34 to be a member of the organisation,35 or even to associate
with a member of the organisation.36 A person who is even only remotely
connected to the organisation would be under increased surveillance by
virtue of recent legislative amendments.37
If proscribed, it is more than likely that an organisation would be
incapacitated, severely restricting the religious freedom of all members.
Congregations and participants in the group would be subject to collective
punishment in the form of limits to their religious activities, e.g. attending
classes, teaching classes, performing prayers together, donating money or
clothes to the organisation, or speaking to members of the organisation
to express their support of its continued existence.
B. ASSOCIATION OFFENCE UNDER SECTION 102.8 OF THE
CRIMINAL CODE
The association offence under section 102.8 of the Criminal Code is one
of the more controversial provisions of the counter-terrorism laws. It
makes it an offence to associate with a director, promoter or member of
a terrorist organisation. The Security Legislation Review Committee has
recommended that section 102.8 should be repealed as it “transgresses a
30 This compares with 27 out of 49 in the UK, 25 out of 42 in the US, and 11 out of 47
in the EU.
31 Criminal Code s 102.1(4)(b), amended by the Anti-Terrorism Act (No. 2) 2005 (Cth).
32 For a detailed discussion see Submission No. 17(b) to Security Legislation Review
Committee, above n 23, (January 2006) 6-8 (Australian Muslim Civil Rights Advocacy
Network).
33 Criminal Code s 102.2.
34 Criminal Code s 102.7.
35 Criminal Code s 102.3.
36 Criminal Code s 102.8.
37 Telecommunications (Interception) Amendment Act 2006 (Cth).
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RELIGIOUS TOLERANCE AND THE RESPONSE TO TERRORISM
fundamental human right—freedom of association—and interferes with
ordinary family, religious and legal communication,”38 citing as its reasons
the breadth of the offence, lack of detail and certainty, as well as the
narrowness of its exemptions.
The offence moves away from criminalising what a person does, to
who they know or spend time with regardless of their intention. This has
an immense effect on the freedom of individuals to associate, and limits
their right to practice their religion. A wide range of legitimate activities,
including social and religious festivals and gatherings, could be covered by
the offence.39 That all but one organisation are self-identified as Muslim
organisations means that this provision applies almost exclusively to the
communications of Muslims. In addition, in order to enforce this provision
it is conceivable that there would be an immense increase in surveillance
and scrutiny of Muslim communications and organisations.40
As if to acknowledge that the offence will indeed target the free practice
of religion, section 102.8(4)(b) of the Criminal Code provides for a specific
exemption for religious association where the association occurs at a place
being used for public religious worship and takes place in the course of
practising a religion.
However, the narrowness of the exemption means that many of the
usual activities that would occur within a religious community are not
covered. Muslim communities, like many ethnic communities, are tightly
knit and religious association is not confined to mosques in structurally
delineated times alone. In his or her religious life, a Muslim is expected
to attend religious festivals where congregational prayers are performed
at an outdoor venue rather than a traditional place of worship such as a
mosque; he or she may attend regular classes and Qur’an study groups
which are frequently conducted in people’s homes or hired halls, but not
always in mosques; and he or she may attend the celebration of a religiously
and socially significant event such as a wedding or the birth of a child in
a public place. If a person were to “associate” with another within the
meaning of section 102.8 in any of the above cases, he or she would have
no defence under the current legislation.
C. SEDITION OFFENCES UNDER SECTIONS 80.2(1 )-(9)
OF THE CRIMINAL CODE
The sedition offences, as amended by the Anti-Terrorism Act (No. 2) 2005
also have a significant impact on religious freedom in Australia. There
are now five sedition offences in the Criminal Code. It is an offence to
urge another person to overthrow the Constitution, the governments or
38 Security Legislation Review Committee, above n 23, 4.
39 Submission No. 84 to Senate Legal and Constitutional Committee, Parliament of
Australia, Inquiry into the provisions of the Anti-Terrorism Bill (No. 2) 2004 (2004), 15
(Australian Muslim Civil Rights Advocacy Network).
40 Ibid, 9-11.
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AGNES CHONG
their lawful authority,41 or to interfere with parliamentary elections.42
It is also an offence to urge force or violence against other groups in
society whether distinguished by race, religion, nationality or political
opinion in circumstances where it would threaten the peace, order and
good government of the Commonwealth.43 Finally, it is also an offence
to urge another to engage in conduct that would assist an organisation
or country that is either at war with the Commonwealth, or engaged in
armed hostilities against the Australian Defence Force.44
It is difficult to appreciate that the sedition offences criminalise the
communication of ideas without the requirement of an intention that a
relevant offence be committed. It has been strongly argued by a broad
cross-section of lawyers, academics, civil libertarians, media and artists that
the offences are likely to silence political dissent instead. In the words of
the Australian Law Reform Commission, apart from the treason offences,
“sedition is quintessential^ 'political’ crime, punishing speech that is
critical of the established order.”45
In the current political climate where Muslims are expected to
subscribe to “Australian values,”46 and where any political dissent from
Muslims is viewed with suspicion, these offences will have an additional
effect on Muslim community groups, who may, for example, wish to
express solidarity with other Muslims living under oppressive regimes or
various kinds of occupying forces, or express legitimate support for self­
determination struggles around the world. This is particularly the case
where the Australian armed forces are at war in Muslim-majority countries
such as Iraq and Afghanistan, such that any person who wishes to express
support or who urges others to assist those back home would fall foul of
sections 80.2(7) or (8).
The provisions contribute to the normalisation of Islamaphobia and may
lead to the criminalisation of statements made by Muslims as “incitement”
where there may otherwise be no evidence of violent acts that threaten
the safety of the public, perpetuating the perception that religious ideas
are fundamentally against the authority of the Commonwealth.
In writing about the UK “glorification of terrorism” offence, the Islamic
Human Rights Commission observed that statements made by Muslims
will be regarded as “glorification” by virtue of their and their audience’s
faith:47
41 Criminal Code s 80.2(1).
42 Criminal Code s 80.2(3).
43 Criminal Code s 80.2(5).
44 Criminal Code ss 80.2(7) and (8).
45 Australian Law Reform Commission, Review of Sedition Laws, Discussion Paper 71
(2006), 34.
46 See, ABC News online, “Minister tells Muslims: accept Aussie values or ‘clear off,
24 August 2005 <http://www.abc.net.au/news/newsitems/200508/sl445181.htm>; Josh
Gordon and Jewel Topsfield, “Our values or go home: Costello” The Age, 24 Lebruary 2006.
47 Lahad Ansari, Another Pyrrhic Victory: Are Muslims Missing the Bigger Picture (2006)
Islamic Human Rights Commission, <http://www.ihrc.org.uk/show.phpFkN1685> 23 May
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RELIGIOUS TOLERANCE AND THE RESPONSE TO TERRORISM
Already Muslim dissent against oppression overseas has been curtailed in a
climate of fear and uncertainty. It is clear that should this offence make it
into law that Muslims will be the first targets and this will include those who
support legitimate liberation struggles as defined by international law be it
in Palestine, Iraq, Chechnya or elsewhere in the world. They may even be
prosecuted for espousing the same sentiments as the Prime Minister’s wife
[who was accused of being a Palestinian suicide bomber sympathiser], or
feting figure who are no more or less “terrorists” than Nelson Mandela.48
The Federation of Community Legal Centres (Vic) Inc’s submission
submission to the Australian Law Reform Commission review of the
sedition laws similarly argued that “the statements of Muslim community
members may be perceived through the lens of the highly politicised concept
of ‘extremism’ and as a result assessed as ‘terrorist’ or ‘seditious’”.49
The spotlight on Muslim speech due to the sedition offences leads
to a significant chilling effect on the Muslim community in Australia.50
It has been suggested that Muslims fear using “legitimate concepts and
terminology” due to the anxiety of being misunderstood by authorities.51
Some even engage in self-censorship of certain words or concepts, such as a
religious lesson on “jihad,”52 for fear that it could easily be misunderstood
as glorifying or encouraging terrorism. There are also concerns surrounding
the “extremely thin line” between empathising with the Palestinian cause
and justifying the actions of suicide bombers which could not be drawn with
any legal certainty.53 There is a fear that the censorship, whether by oneself
or externally imposed, of those who criticise government policy would likely
drive extremists further underground.54 It has also been suggested that the
sedition laws are likely to inhibit inter-community dialogue that is necessary
to bring about understanding and the peaceful resolution of differences.55
2006.
48 Massoud Shadjareh, Chair of Islamic Human Rights Commission, “UK Terrorism
Bill—Who will be Prosecuted for Glorifying Terror and Why?”
(Press Release, 15 February 2006).
49 Submission No. 33 to Australian Law Reform Commission, above n 45
(10 April 2006) (Federation of Community Legal Centres (Vic)).
50 Submission No. 54 to Australian Law Reform Commission, above n 45
(1 7 April 2006) (Australian Muslim Civil Rights Advocacy Network).
51 Alan Travis and Patrick Wintour, “Terror Bill Chilling for Muslims, Blair Warned”,
The Guardian (England), 11 November 2005.
52 “Jihad” is an Arabic word that means “struggle”. In the Islamic context it is
used to mean two different things: struggle to follow one’s faith and to control one’s worldly
desires, and military struggle. For example, one might struggle against one’s inclination to
worldly entertainment to spend more time on worship. It can also mean military conflict
against an oppressor, e.g. the fighters against Soviet occupation of Afghanistan in the 1980s
were known as “mujahideen” (lit. one who struggles). Unfortunately, in the Western media,
the term “jihad” has become synonymous with terrorism, but this is not its true meaning.
53 Alan Travis and Patrick Wintour, above n 51.
54 Ibid.
55 Submission No. 45 to Australian Law Reform Commission, above n 45,
(13 April 2006) (Emrys Nekvapil).
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AGNES CHONG
D. INCITEMENT OF GROUP VIOLENCE UNDER SECTION 80.2(5)
OF THE CRIMINAL CODE
A particular sedition offence warrants specific attention. Section 80.2(5) of
the Criminal Code makes it an offence to urge a group, whether distinguished
by race, religion, nationality or political opinion, to use force or violence
against another group, which force or violence would threaten the peace,
order and good government of the Commonwealth. While some have
welcomed the inclusion of the offence, citing that this is the first time
Australia’s obligations under international law to proscribe advocacy of
racial, religious and national hatred has been recognised at federal law,56
there are also philosophical shortcomings.
Firstly, the framing of the sedition offence as one of inter-group
violence in the context of terrorism acts to emphasise the idea that they
are intrinsically linked,57 reinforcing the stereotype that certain ethnicities
or religions are connected to terrorism.58 Submissions to the Australian
Law Reform Commission review argued that the backdrop for the sedition
offences “may strengthen the misleading and dangerous impression that
the problem of terrorism has its roots in Islam and that the leaders of
Islamic communities may be likely to contravene the sedition provisions.”59
The characterisation of inter-group violence based on race or religion as
political offences in the context of counter-terrorism measures further
amplifies the division between different groups in society without regard
to the principles of tolerance.
Secondly, it is ironic since the government has been a long-time
opponent of religious vilification legislation as a matter of policy.60 Inherent
in that is the acknowledgement that people are free to express their ideas,
that others are free to argue against the ideas in kind, rather than through
the brute force of the law.61 A member of the House of Lords said, “rants
should be rejected with argument, not with police or prisons.”62 The
56 Australian Law Reform Commission, above n 45, 189.
57 Australian Law Reform Commission, above n 45, 191.
58 Australian Law Reform Commission, above n 45, 191, citing anumber of submissions
including that of the Chief Minister of the ACT, Submission No. 44 (13 April 2006); Dr
Ben Saul, Submission No. 52 (14 April 2006). See in particular Submission No. 45 cited in
Australian Law Reform Commission report, above n 45, 191.
59 Submission No. 16 to Australian Law Reform Commission, above n 45,
(9 April 2006) (Pax Christi).
60 See, e.g., Human Rights and Equal Opportunity Commission, Article 18, Freedom of
Religion and Belief (1998) Human Rights and Equal Opportunity Commission, Sydney;
Human Rights and Equal Opportunity Commission, Isma—Listen: National Consultations
on Eliminating Prejudice against Arab and Muslim Australians (2004) Human Rights and
Equal Opportunity Commission, Sydney.
61 See also A Lester, G Bindman, Race and Law, Longman Group Limited, London, 1972,
357; R Chow, “Inciting Hatred or Merely Engaging in Religious Debate: The Need for
Religious Vilification Laws” (2005) 30 Alternative Law Journal 121.
62 Australian Law Reform Commission, above n 45, 103. See also Syed Atiq ul Hassan,
Australian Freedom of Speech and the Induction of Sedition Laws (2005) Tribune
International <http://www.tribune-intl.com/articles/read.asp?newsID = 41 > at 13 June
2006.
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RELIGIOUS TOLERANCE AND THE RESPONSE TO TERRORISM
approach of the government in introducing section 80.2(5) to prevent
incitement of group-based violence, ostensibly to protect groups in the
community, including religious groups, appears disingenuous at best. It
has also been argued that it evidences a concern to protect the majority
“rather than vulnerable racial or religious minority groups”.63
While to date no charges have been made, the sedition offences have
been discussed in the context of the so-called “books of hate” being sold
in some Islamic bookshops. While these books have been found to not be
in breach of the broad sedition offences or any other federal or state laws
prohibiting the incitement of violence or racial hatred, the government
continually asserts their intention to amend the law to outlaw such
literature.64 To be continually seeking to amend the laws is likely to be
perceived by Muslim communities as a relentless pursuit to limit their
freedom to speak out against injustice, to encroach upon the freedom of the
community to express their thoughts. Furthermore, it is perceived by some
members of the Muslim community that the government bans particular
books because it cannot argue against them on a logical or rational level.
Counter-productively, this gives banned books a kind of cachet that they
would not otherwise have.
E. FEATURES OF COUNTER-TERRORISM LEGISLATION LIKELY
TO LEAD TO PROFILING ON THE BASIS OF RACE OR RELIGION
The strategy of racial profiling has been criticised as “dangerously
ineffective”.65 It has been argued in Australia66 and overseas that such
measures increase community tension67 and are detrimental to the
harmony of the community. In the context of anti-terror laws, this effect
is magnified.68
63 Submission No. 187 to Senate Legal and Constitutional Committee, Inquiry into
Anti-Terrorism Bill (No 2) 2005 (P Mathews), cited by Australian Law Reform Commission
report, above n 45, 192.
64 “Govt mulls law change over terror books” The Age, 1 6 May 2006; “AG flags tougher
sedition laws” news.com.au, 18 May 2006.
65 Ben Golder and George Williams, above n 1, 56.
66 Ibid, 43; Jude McCulloch and Bree Carlton (2006) “Pre-empting Justice: Suppression
of Financing of Terrorism and the ‘War on Terror’”, 17(3) Current Issue in Criminal
Justice 397; Joseph Pugliese, “In Silico Race and the Heteronomy of Biometric Proxies:
Biometrics in the Context of Civilian Life, Border Security and Counter-Terrorism Laws”
(2005) 23 The Australian Feminist Law Journal 1; Agnes Chong and Vicki Sentas, “Part
III: Monitoring the Impact of Terrorism Laws on Muslim and Culturally and Linguistically
Diverse Communities’” in Combined Community Legal Centres’ Group (NSW) Inc, et
al, Australian NGO Submission to the UN Special Rapporteur on Counter-Terrorism and
Human Rights (2006) <http://www.naclc.org.au/docs/SR%20report0306(final).pdf>.
67 See e.g., David Cole, Enemy Aliens, Double Standards and Constitutional Freedoms
in the War on Terrorism (2003); Elaine Catherine Hagopian (ed), Civil Rights in Peril: The
Targeting of Arabs and Muslims (2004); Tram Nguyen, We are all Suspects Now: Untold
Stories from Immigrant Communities after 9/11 (2005); Liz Fekete, “Anti-Muslim Racism
and the European Security State” (2004) 46(1) Race and Class 3.
68 See e.g., David Cole, Enemy Aliens, Double Standards and Constitutional Freedoms
in the War on Terrorism (2003); Elaine Catherine Hagopian (ed), Civil Rights in Peril: The
Targeting of Arabs and Muslims (2004); Tram Nguyen, We are all Suspects Now: Untold
Stories from Immigrant Communities after 9/11 (2005); Liz Fekete, “Anti-Muslim Racism
165
AGNES CHONG
In view of the utter devastation of terrorist attacks, the traditional
criminal law was deemed to be inappropriate in dealing with terrorism as
it focuses on the behaviour after the fact,69 and that terrorism is so heinous
that it must be prevented at all costs. Therefore, since September 11 there
has been a general shift towards preventative or pre-emptive measures of
law enforcement which criminalise certain acts that may occur in the very
early stages of planning, even if no terrorist act actually occurs.70
Pre-emptive measures by definition are concerned with the identification
of suspicious behaviour based on predictive elements rather actual action
constituting a crime. While the anti-terrorism laws do not specifically target
the action or speech of particular groups, some of the measures promote or
lend to the practice of profiling on the basis of features such as a person’s
race or religious conviction. In particular, those aspects of law enforcement
and surveillance powers that involve direct dealings with people are most
prone to this technique. This includes preventative detention,71 control
orders,72 police stop and search and question powers,73 and the suppression
of financing terrorism.74
The preventative detention provisions allow a person to be detained if the
police are satisfied on reasonable grounds that the person may be involved
in a terrorist act.75 There is an increased risk of preventive powers being used
discriminatorily, exposing vulnerable and visible communities to arbitrary
interference. In the United States, up to 1,200 people were detained
within two months of the 11 September attacks under various powers,76
including the controversial material witness powers.77 A research study by
Human Rights Watch and the American Civil Liberties Union reveals that
of the seventy people who were arrested as material witnesses, “all but one
was Muslim, by birth or conversion. All but two were of Middle Eastern,
African, or South Asian descent, or African-American”.78 In addition, the
Department of Justice questioned almost 5000 young Arab and Muslim
men in the few months after 11 September.79 All of the people detained were
cleared by the FBI and found to have had nothing to do with terrorism.
and the European Security State” (2004) 46(1) Race and Class 3.
69 See for example the Attorney-General’s comments as quoted in ABC Radio, “Law
Council hopes High Court will Stop New Anti-Terrorism Laws” AM, 7 December 2005.
70 Jude McCulloch and Bree Carlton, above n 66.
71 Criminal Code Part 5 Div 105.
72 Criminal Code Part 5 Div 104.
73 Crimes Act 1914 (Cth) Part LAA Div 3.
74 Suppression of the Financing of Terrorism Act 2002 (Cth).
75 Criminal Code s 105.4.
76 PBS Newshour, “Locked Up”, Newshour, 11 November 2001 <http://www.pbs.org/
newshour/bb/terrorism/july-dec01/detainee_l l-8.html> 4 March 2006.
77 L Levenson, “Detention, Material Witnesses and The War On Terrorism” (2002) 35
Loyola of Los Angeles Law Review.
78 Witness to Abuse: Human Rights Abuses under the Material Witness Law since
September 11 (2005) Human Rights Watch and the American Civil Liberties Union
<http://hrw.org/reports/2005/us0605/> at 2 November 2005.
79 Sameer Ashar, “Immigration Enforcement and Subordination: The Consequences of
Racial Profiling after September 11” (2002) 34 Connecticut Law Review 1185, 1192.
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RELIGIOUS TOLERANCE AND THE RESPONSE TO TERRORISM
Similarly in the UK, in the aftermath of the terror bombings in London
on 7 July 2005, the number of Asian and Black people who have been
stopped and searched under section 44 of the Terrorism Act 2000 (UK)
increased more than twelve-fold compared to the statistics pre-7 July
2005.80 The guidance document for police managers in relation to the
powers suggests that a person’s ethnic background may be relevant in
deciding who to stop in response to a terrorist threat, and specifies as
an example that “some international terrorist groups are associated with
particular ethnic groups, such as Asians, and people of Middle Eastern
appearance, which are ethnic groups that police officers would most likely
associate with Islam.”81
Control orders may be imposed if a court is satisfied on the balance
of probabilities that it would substantially assist in preventing a terrorist
act, or that the person has trained with a proscribed organisation.82 It
has been argued that these powers potentially open the door for racial
or religious profiling in two different areas: grassroots policing and in the
court room.83
The stop, question and search powers may be exercised with respect
to a person in a Commonwealth place where the police suspect on
reasonable grounds that the person might have just committed, might be
committing, or might be about to commit a terrorist act.84 In ‘prescribed
security zones,’ there is no requirement for reasonable suspicion for the
powers to be exercised. As extensive research shows, personal biases and
prejudices are likely to weigh on the mind of the police officer.85 Indeed,
Police Federation of Australia Chief Executive Mark Burgess confirmed
this when he suggested that the police should have legal protection against
being sued for unlawful discrimination when using the stop, question and
search powers.86
In an examination of the suppression of financing of terrorism
legislation, McCulloch and Carlton argue that pre-emptive criminal justice
singles out individuals and organisations “for differential treatment and
reinforcing social division and exclusion of already marginalised groups”
because of its emphasis on untested or untestable intelligence, innuendo,
80 Vikram Dodd, “Surge in Stop and Search of Asian People after 7 July”, The Guardian
(England), 24 December 2005.
81 UK Home Office, Stop AND Search Action Team, Interim Guidance (2004) 12.
82 Criminal Code s 104.4(1).
83 Agnes Chong and Vicki Sentas, above n 66, 44.
84 Crimes Act 1914 (Cth) s 3UB.
85 See, e.g., Jock Collins, “Youth, Ethnicity and Crime in Australia” (Paper to the Les
Recontres du CEDEM Centre for Studies on Ethnicity and Migrations, Universite de Liege,
25 April 2002); Jock Collins, “Ethnic Minorities and Crime in Australia: Moral Panic
or Meaningful Policy Responses” (Paper to a Public Seminar organised by the Office of
Multicultural Interest, Western Australia Perth, 8 November 2005); J Collins, G Noble, S
Poynting and P Tabar, Kebabs Cops Kids and Crime—Youth, Ethnicity and Crime (2000).
86 ABC Radio, “Police worried about legal action from anti-terrorism laws” AM, 27
September 2005 <http://www.abc.net.au/am/content/2005/sl469047.htm> at 27
September 2005.
167
AGNES CHONG
gossip or prejudice to predict crime.87 Further, since research showed that
the financial profile of the 11 September hijackers did not evidence any
planning for terrorist-related activity, one has to resort to other features
to determine suspicion,88 which may include the person's background,
lack of local knowledge, and even the person’s name. Recently, money
transfer agency Western Union has delayed or blocked thousands of cash
transfers to the United Arab Emirates on the basis of suspicion of terrorist
activity simply because of the names of either the sender or recipient
being Mohammed or Ahmed.89 A further example is a recent request to
universities to report any “suspicious activities” by students from specific
countries suspected of harbouring weapons of mass destruction.90 This
followed an incident in which a student by the Muslim name of “Abraham”
was questioned by the police when he borrowed books from the university
library on martyrdom in Islam and terrorism for his PhD research.91
Pre-emptive measures necessarily mean that some activities, even if
not connected with any actual criminal activity, will be scrutinised.92 The
Council on American-Islamic Relations has raised concerns about the
singling out of Muslims at airports, the use of the USA Patriot Act to require
businesses to monitor their customers and report “suspicious transactions,”
the targetting of immigrants from Muslim majority states, and how
Muslim legal immigrants have been interrogated in their homes about
their practice of Islam, what they thought about various religious concepts
such as jihad, the mosques they attended, and the views of their imams.93
The use of racial or religious profiling is counter-productive to the aim of
national security in its alienation of the very community whose cooperation
is essential in combating terrorism.94 Such targeting is likely to create
feelings of suspicion in the community that is not commensurate with a
society that respects the freedom of people to practise their religion.
IV. Conclusion
The current approach to combating terrorism in Australia has seen the
implementation of a regime that has had an adverse impact on religious
tolerance. It stems from a misguided view of terrorism, one which views
religion only as a cause of terrorism rather than also a possible ally in
87 Jude McGulloch and Bree Carlton, above n 66, 404.
88 Ibid 397.
89 Anjan Sundaram, “Western Union Blocks Arab Cash Transfers”, AAP, 6 July 2006.
90 Dorothy Illing, “Campus terror crackdown”, The Australian, 26 April 2006.
91 Clay Lucas and Julia Medew, “Federal police quiz Muslim over library books” The Age,
26 July 2005; Lynn Bell, “AFP ‘targeted’ Muslim convert over library books” ABC News
Online, 26 July 2005.
92 Jude McCulloch and Bree Carlton, above n 66, 403.
93 Mohamed Nimer, “Muslims in America after 9-11” (2002) 7 Journal of Islamic Law
and Culture 1.
94 See Jonathan White, Defending the Homeland, Domestic Intelligence, Law
Enforcement and Security (2004); Karl Nickner, “Canadian Muslims are First Line of
Defence against Homegrown Terrorism” The Montreal Gazette, 10 June 2006.
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RELIGIOUS TOLERANCE AND THE RESPONSE TO TERRORISM
the fight against it. Implicit in this is the lack of a critical analysis of the
distinction between religious fundamentalism and religious extremism
of a kind likely to lead to terrorism. This has manifested itself in legal
responses to terrorism, and also in the government’s approach from the
socio-political perspective. It shows a reliance on an assumption that the
scourge of terrorism can be addressed by tough laws.
This construction further manifests itself in the actual making of laws
that contribute, whether intended or not, to an unprecedented focus
on the actions and speech of members of the Muslim communities.
The proscription regime and the related offences, such as association or
membership, legitimise the scrutiny of all aspects of religious organisations,
restricting people’s rights to congregate, to speak, to pray, to give charity,
or to provide support to their congregation. Other new powers such as
the preventative detention, control order and stop, question and search
powers are so broad as to allow the spectre of racial or religious profiling
to arise. Finally, the sedition offences introduced in a counter-terrorism
context reinforce the existing community intolerance of other religious
ideas and thoughts, banning outright what should more properly be dealt
with by intelligent debate, logic and reason.
These impacts on Muslim communities are significant and permanent,
and will lead to the institutionalisation of religious intolerance. Instead,
the legislative and political responses to terrorism should take a broader
view. There should be an emphasis on developing a more wide-ranging,
textured, and most importantly, inclusive approach to combating terrorism
with social, economic and policy dimensions. However, it is feared that, in
view of the alienation already existing due to the current legal and political
responses to terrorism and the lack of commitment to religious tolerance,
an obstacle will remain.
169